McDonagh v Sunday Newspapers Ltd t/a The Sunday World

• Jurisdiction: Ireland
• Judge: Clarke J.,MacMenamin J.,Dunne J.
• Judgment Date: 18 February 2016
• Neutral Citation: [2016] IESCDET 27
• Judgment citation (vLex): [2016] 2 JIC 1808
• Court: Supreme Court
• Date: 18 February 2016

[2016] IESCDET 27

THE SUPREME COURT

DETERMINATION

Clarke J.

MacMenamin J.

Dunne J.

BETWEEN

MARTIN McDONAGH

PLAINTIFF / APPLICANT

AND

SUNDAY NEWSPAPERS LIMITED TRADING AS THE SUNDAY WORLD

DEFENDANT / RESPONDENT

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Defendants/Applicants to appeal to this Court from the Court of Appeal

REASONS GIVEN:

1. Jurisdiction

1.1 This determination relates to an application by Martin McDonagh (‘the applicant’) for leave to appeal under Article 34.5.3 of the Constitution, from a judgment of the Court of Appeal (Kelly J., Irvine J., Hogan J.) delivered on 19th October, 2015. The order appealed against was made on the 16th November, 2015 and perfected on the 25th November, 2015.

1.2 As is clear from the terms of the Constitution and many determinations now made by this Court since the enactment of the 33rd Amendment, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance, or that it is otherwise in the interest of justice necessary that there be an appeal to this Court.

2. The Proceedings

2.1 The proceedings herein concern an action for libel brought by the applicant against the respondents, Sunday Newspapers Limited. In the High Court, the jury awarded the applicant the sum of €900,000 in damages for libel, published in the Sunday World Newspapers, for having alleged that he was a drug dealer, and loan shark.

2.2 The High Court jury found (a) that the respondent had not proved that the applicant was a drug dealer; (b) that the respondent had not proved that the applicant was a loan shark; however, it also found (c) that the respondent had proved that the applicant was a tax evader; (d) that the respondent had proved that the applicant was a criminal. The applicant submits that, despite the jury's findings on (c) and (d), there had nonetheless been a finding that his reputation had been materially damaged and he was entitled to damages.

2.3 The Court of Appeal order is to be seen as having three ‘operative parts’. The applicant now submits that the Court of Appeal erred in allowing the appeal against (a) above, that is, that part of the verdict (“the first operative part”), and addressing drug dealing, and instead dismissing that claim entirely; and in holding that the plaintiff's claim in relation to (b) the allegation of loan sharking be remitted to the High Court for a retrial (the second operative part). It is further submitted that the Court of Appeal erred in directing that the applicant repay the respondents the sum of €90,000 paid out on foot of the High Court order (the third operative part of the Court of Appeal order).

2.4 The respondent submits that the Court of Appeal decision was in accordance with law, as identified below, and also was no more than an application of accepted principles of both the law of libel, and also the rule in Browne v. Dunn [1894] 6 R 67, addressed in recent decisions of the High Court, and an earlier decision of this Court.

3. The Order appealed against

3.1 The order appealed against is the entirety of the first operative part, the entirety of the second operative part, and that portion of the third operative part, which ordered the repayment of €90,000 paid out on foot of the High Court order.

4. The Contentions of the Parties

4.1 The notice of application for leave to appeal, together with the response is published along with this determination. In those circumstances, it is not necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient, first, to summarise the basis upon which the applicant suggests that the constitutional threshold for leave to appeal has been met, and thereafter consider the response.

5. The Applicant's Submissions

5.1 The applicant submits that, in reaching its conclusions, the Court of Appeal has diminished or distorted the pivotal role of juries in libel actions, which role places particular weight on jury findings on defamatory meanings, and/or damage to reputation.

5.2 The applicant's contention is that the judgment of the Court of Appeal suggests that appellate courts are at large to weigh evidence and to make their own decisions on matters of defamation, undermining a fundamental principle of jury trial, as identified in McEntee v. Quinnsworth (The Supreme Court, Unreported, 7th December, 1993). It is said that the Court of Appeal failed to apply the principles enunciated in Hay v. O'Grady [1992] I.R. 210, and/or fundamentally misapplied the principles enunciated therein, insofar as they apply to findings of a jury (as opposed to a judge alone). The applicant submits that the decision subverts the near ‘sacrosanct’ nature of jury findings on defamatory meanings, or damage to reputation; that the Court of Appeal disregarded established principles, as enunciated in the case law, as to the status to be imparted to jury verdicts, and in holding that the jury's determination that the applicant had been libelled on the “drugs issue” was perverse. The applicant relies on Quigley v. Creation [1971] I.R. 269; Barrett v. Independent Newspapers [1986] I.R. 12; Cooper Flynn v. R.T.E. [2006] 2 I.R. 72 in this regard.

6 The Respondent's Submissions

6.1 The respondent, on the other hand, says that the Court of Appeal did nothing more than apply the case law, as identified above in Quigley, Barrett and Cooper Flynn. It says, the Court of Appeal also correctly applied the law, as enunciated by the House of Lords in Grobbelaar v. News Group Newspapers [2002] 1 WLR 3024. In Grobbelaar, the House of Lords, in allowing an appeal held, (Lord Steyn dissenting), that an appeal court ought not to find the verdict of a jury on liability to be perverse, unless there was no rational explanation for it; that although any finding by a jury that the particular plaintiff in Grobbelaar had not entered into a corrupt conspiracy would, on the evidence before it, have been plainly wrong; the jury had been entitled to find that the “sting” of the article published by the defendant lay not in an allegation of conspiracy, but in that of match fixing on the field of play; that the verdict in favour of the plaintiff was consistent with the jury having come to that conclusion; and that, accordingly, since it had been open to the jury to find that the “sting” of the libel lay in the allegation of match fixing, and to find that had not been justified, the Court of Appeal ought not to have overturned the jury's verdict, on liability. The House of Lords held that, although the restoration of...